51 F. 766 -

51 F1d 766

class="ad-unit">

Case Text

·

""

J

.'F:lttlhb

;:!

,i:;

'II.

THEJ?ltEMmi.

SF.R1,. TliE F:alSTAD.

N,D.

August 15, 1899.)

jI'H8'trlet court; h

COLLtstON",,-V:I!:sllltt..

ANCHOK....:MU!'tTAL A in the "aallMttGrounds" oftha harbor of PortTownsend,in a oourse usually traveled by vessels el:\tering t!Jflsame. not within legally reserved fairway. A lantern suspended. from her rigging, Which stE!adyligbt;",as. the only wal'ning of her A steamer entennllitlle,harbor at fulhpeed collided w1,th t,he bark,whose presence was not perceiieu ''&y the steamer's lookout, although tbe bark 'was in tbe direct line of the that both ve.s8els. were in fault,-the bark in not turnisbmg proller warning of bel' presence; the steamer either in the inattentionOfiber!!OOkOlit;,ol"in entering tbe harbor at fullspeed.....anditwas therefore a for divllliQn.of damages.

In AdQliraJty. Cross to recover caused by a collision. bQth vessels were in fault, and that the damages be divided. T!wmpsO'f/"EdMn & Hwm.phries, for the Fristad. & the Premier.
; HANFoim, District J uage. The master of tho' Norwegian bark Fris· tad, in'hahalf of her owners, has brought this suit in rem against the Amerioan steamer Premier to recover damages for injuries sustained by the bark in a oollision ofthe ·two vessels; and the owilar of the steamer to her j caused by the has filed a· oross libel, claiming damages for sameoolliBion. The time of the collision wagS' o'clook A. M" FebrulHy 1, 1892,apd"theplaoewas the entrance to Port Townsend harbor, nearly midway hetween Marrowstone Point and Point Hudson., The hark was at'anchor there, and,by for(',e of &. !loodtideand the wind, was held withhel" stern towards Marrowstone P,oint. The steamer in makingtbe run from Seattle to her usual landing place at Port Town,send,whileonher usual oourse from Marrowstone POl'l'1tand running at full speed, about 13mileslper hour, ran against the bark endwise, the stem of the steamer striking the stern of the bark her center and th-e corner on the starboard side. 'l'he bark was notaeen by the officers ·ori the lookout of the steamer until the vessels were too near to each other to avoid the .oollision.Thebark had a lantern hung" from hel'lstarboard it did or did forerigging about 17 or 18 feet above her hull. not give forth· a light visibileto the offioers of the steamer as she applloached, is one of the dontroverted points of the case. The master and officers of the bark were onbollrd of her and asleep. Members of the crew' were assigned to: keepwatoh, one at a tilne, each man to' 'be on duty one hour. The two whose respective watches were· from 2 until 3 and from 3 until 4 o'clock have testified that they did not see or hear the steamer, and were not aware of her approach before she actually struck, and no sound or warning to passing vessels was given, other than the lantern hung in the rigging as aforesaid. The night was dadt, but
I

.

.

FRISTAD. V. THJ!}

"

767

and Port To;wp!;leD;<l was brilliant with· Ellectric other lights, the rays o( which emanated various points of elevation up to the erpineIlce", of the ,residence district, and down to Point Hudson beach. As the Premier Marrowsto.ne Point, and. straightened on her bourse, hElading {or PoilltHudson, she had the Fristad between her and in her course; so that the light the lights of the city, and laying if bU,rning brightly and not obscured by the rigging, c()uld not have distinguished frOm other lights by persons on the for a very short distance. The master, pilot, and a of the Premier were on duty in her pilot house, and sll.e h#il.lookoutoll deck. As soon as possible after the tan, of tlie Premier gave his cqmmands to put 'her. helm hai'd astllrboar4, aridgoastel'n full speed, .which orders were installtly obeyed by engineer,but.without effect, to .avoid the lision or m(jqerate the force of it. .. .. . In behliH' of'the pre:rnier it is earnestly.eODtended that the facts of thiEl case,asI have nll-rrated them, clear het: of all responsibility for the accident. "I am of the opinion, however, that,evenif there was no visibleligqf on the Fristad, 'she could have been seen,. from th;e Premiei' the attention of her officers and lookout. had not been diverted during the two Oi'.three minutes. preceding. the collision. If they were not guilty of a: Jilek of vigilance, I must regard the fact that the collision occurred as proving that it is dangerous tor a steamer to enter a harbor at full speed on a dark night. Therefore I must find that the collision was in part, at least, due to either inattention to their duties, or a positive infraction of the rules of navigation on the part of the Premier's officers and crew. The lantern in use on the Fristad has been brought into court, and made an exhibit in the case. The globe and frame of it are ot the best material, and the proper size. I find no fault with it. except that the burner is not reliable. In experimenting with it, a sudden jarring of the stand on which it was placed, caused only smoke instead of flame to issue. Two or three repetitions of a similar jarring caused it to burn again, and give a strong light. From the testimony it appears to me to be quitE' probable that during part of the night before the collision thig l;mrner was smoking instead of giving light. The and lookout of the Premier have all testified that, when the bark came into view, they saw no light upon her. Other steamers passed the Fristad on the night of the collision, and persons who were on board of them, including their pilots, have testified that they saw the Fristad when passing, and saw her light after passing her, but did not see it before. The master and mate of the Fristad have shown by their testimony that after the collision the light was taken down by the master's orders to be fixed, because it was not so bright as when they first noticed it after the collision. The mate, upon examining it, found, as he supposed, that the wick had dropped down, and screwed it up to improve the light. After considering and weighing the evidence upon the point, I find that there

768

J'EDEBAL REPORTEB, vol. 51.

is!afair preponderaltceof it to my cohc1m31ontha.(h¥'1, lariterQ. not. on the night of the collision, give a uniform or light. , .'nte place at which the Frlstad anchored is within, Of whil,t is known at Port Townsend as Grounds'" the water being 80 deep that vessels can there dump ballast any la. or harbor regulation, and it was for the purpose of discharging ballaet that the Fristad' was' anchored at that place: Althoughdireetly in the usually traveled pathway of vessels entering the harbor from the soutllward, said place is 'not within a legally reserved' or recognized fairw8,y, and any vesselma:y lawfully lay at anchor there. ,It is, however. aplaea iofdanger at night, because ofthe large num1?etof steamers frepathway,ap.d, the difficUlty of distinguishing all" ancbor liglit'fromother lights. A due regard for safety and good seamanship requires that on board a vessel in such a watch be kept, and that in sOme, manner, as by ringing a, bell,approaching vessels should'be warned, rather than depend entirely upon a single langiven, and' the testimony Of the tWQ watchtern. No eon-: men, that'they did not 'see or hear the Premier viets them; of inattentiopand neglect of duty. In my opinion, the Fris'Deing in part responsible fol.' the casualty, and, tad must be the case is a'prtiper one for Ii division of damages. ' '

A general statute authorizing the consolidation of railroad companies must be considered a silent factor in a subsequent contract of subscription made by a township to the stock of a railroad company, and a consolidation of such company with another company will not release the township. but will transfer ita obligation to the new company. In Indiana a mere vote by a township of a given sum in aid of a railroad gives the cOD:lpanr no legal right to or interest in the tax, until the same has been levied and collected and a valid. oontract of subsoription made in behalf of the township.

& BAx_CoNTJU.OT 011 BU1ISORIPTION-WHEN CoIlPLllTBD.

S.

SAME.

U it be conceded that suoh a vote gives a contingent interest which will pass to a new cpmpany by consolidation, such new company cannot assert any claim to the fund when it has not tendered its stock therefor, and has no atook which it may legally tender.

In Equity. Suit by Charles E. Pope, as receiver of the Chicago. & South Atlantic Railroad Company, against the board of county commissioners of Lake County, Ind., the Chicago &.Indianapolis Air Line Railroad Company, the Louisville, New Albany & Chicago Railway Company, and the Indianapolis, Delphi & Chicago Rajlroad Company, praying to be awarded the Bum of $14,000 by way of subrogation. Heard. on demurrer to an intervening petition by Cedar Creek and West Creek townships and William T. Singleton. Demurrer overruled. Charla E. P(Jj}8, in pro. per. A. C. Harri8, for defendant.
BAKER, District Judge. This is a suit brought by Pope, as receiver , of the Chicago & South Atlantic Railroad Company, against the abovedefendants, to be awarded, by way of subrogatit:m, the sum of $14,000. The money so sought to be subrogated was raised by 8 tax voted by the legal voters of Cedar Creek and West Creek townships, in Lake county, Ind., to aid the Chicago & Indianapolis Air Line Railroad Company in constructing its line of railway into and through said townships. The fund so sought to be subrogated is in the of the court. On leave granted, Cedar Creek and West Creek townships and William T. Singleton, a -taxpayer of each of said townships, have filed an intervening petition in this suit. Singleton intervenes on behalf of himself and all the other taxpayers of each township, who are too to be made parties. The intervening petition seeks to have the fund awarded to the townships, or the taxpayers thereof. on the ground that neither the railroad in whose aid it was voted, nor the Louisville, New Albany & Chicago Railway Company, acquired the right to have the same paid to it. The receiver and the railroads have severally demurred to the petition. The facts, out of which the controversy arises, are substantially these: In 1874 Cedar Creek and West v.51:F.no.12-49